State sued over refusal to put same-sex spouses on birth certificates

A YOUNG PLAINTIFF: The newborn at right, son of Leigh and Jana Jacobs, is one of the plaintiffs in a lawsuit seeking to make the state put both his mothers' names on his birth certificate.

As promised last week, a lawsuit was filed in Pulaski Circuit Court today on behalf of three couples — all married women — who have been unable to get both parents' names on birth certificates.

They include Leigh and Jana Jacobs, who related their problems to me Friday. In each case, the birth mother was allowed to have her name on the birth certificate, but hospital and state officials have said they wouldn't add the other parent without a court order. This complicates obtaining health insurance for the newborn under the coverage of the unrecognized parent.

The suit was filed by Cheryl Maples, who brought the first suit challenging the state's same-sex marriage ban, on behalf of the Jacobses, Marisa and Terrah Pavan and Courtney Kassel and Kelly Scott. Though these couples are married and all had children through a sperm donor, the suit said it believes the state is applying this restriction to unmarried same-sex couples as well.

The suit alleges equal protection and due process violations of the Arkansas and U.S. Constitutions because the state doesn't impose the same restrictions on heterosexual couples. Said the suit:

The Bureau of Vital Statistics routinely provides two–parent birth certificates to all children born to heterosexual couples, even those that are not married, without regard to how the children are conceived or whether a child shares a genetic connection to both parents.

In the case of a child born during a marriage, Ark. Code Anno. § 20-18-401 provides for mandatory inclusion of the spouse on the birth certificate unless there has been a finding that he spouse is NOT the parent or unless there is a sworn statement from the birth mother that her spouse is not the parent of her child. There is a strong
presumption that a spouse of a birth mother is also the child’s parent. Defendant’s policy is to unconstitutionally apply this to heterosexual married couples only.

Ark. Code Anno. § 20-18-401 also provides for the birth mother, if unmarried, to provide the name of the child’s other parent by way of a sworn affidavit. With such a sworn affidavit, the other parent is listed on the birth certificate without any other showing of proof. Defendant’s policy is to unconstitutionally apply this to heterosexual
unmarried couples only.

The effect of this policy, the suit says, is to deprive the same-sex couples and their children of the "dignity, legitimacy, security, support and protections provided to children of heterosexual couples,"

The state Health Department Friday confirmed it was following this policy, but indicated it was mandated by rule to do so until the state Board of Health could change its regulations and the birth certificate form to a gender-free version. Any board rule would require legislative review, which wouldn't necessarily be an easy process.

The suit notes that the enforcement of the rule harms same-sex couples by making it difficult to obtain Social Security numbers and passports; prevents a non-birth mother from making medical and school decisions for her child; restricts the ability to apply for benefits through the non-birth mother; harms inheritance rights; doesn't protect the parent-child relationship in case of a divorce or child support dispute.

The suit asks that Health Department officials be enjoined from continuing to discriminate against same-sex couples. The defendant is Nathaniel Smith, director of the department.

I have sent questions to the attorney general, who'll have to respond for the state, and the state Health Department.

UPDATE: Beyond confirming the attorney general will defend the state, Leslie Rutledge's office declined further comment at this time.

A Health Department spokesman said its comments now had to be limited because of pending litigation. But the agency continues to move ahead, as it said Friday, on resolving the issue through Board of Health action.